de Souza, Ielbo Marcus Lobo; (1993) Customary international law in theory and practice with special reference to the emergence of the Exclusive Economic Zone. Doctoral thesis (Ph.D.), University College London.

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Abstract

There are many practical and theoretical difficulties regarding customary international law which remain unresolved. Pending theoretical debates, not to mention discrepancies between the existing theories on the subject and the realities of State practice, only serve to confirm this. This thesis attempts to explore those difficulties, relating them (though not exclusively) to an institution of international law which has been created by the operation of a customary process, namely, the Exclusive Economic Zone (EEZ). The EEZ is used to exemplify the development of customary law, rather than as a study in the substantive law of the sea. Two main objectives are pursued in this thesis: first, to further the understanding of the nature of customary international law, and secondly, to develop a method or technique whereby a customary rule can be identified. Accordingly, the thesis has been divided into seven chapters. Chapter I introduces the reader to the concept of the international system, and describes the inter-relation between the international system and the international legal system. Chapter II offers a description and analysis of the drafting history of Art. 38 (2) of the Statute of the Permanent Court of International Justice with a view to unravelling the conception of customary law which underlies it and its successor. Art 38 (1)(b) of the Statute of the International Court of Justice. Chapter m is an investigation into the practical and theoretical significance of the concept of consent in the formation of a customary rule. The following two Chapters contain a study of the two components of a customary rule: the practice of States (TV) and the subjective element (V). Chapter IV seeks to determine, inter alia, what types of act constitute State practice and which organs of the State are considered to represent the State in their actions, so far as the customary process is concerned. Chapter V examines the various theories on the subjective element, and presents a tentative definition of the subjective element which takes into account the evolutionary character of the customary process. Drawing partially on the preceding chapters. Chapter VI is a study on the nature and operation of a customary process. This chapter considers three main issues: how State behaviour is affected by the international system; the legal effects of State acts and interactions; and the role of institutional means (i.e., international organizations) on the customary process. To test and illustrate the propositions and conclusions arrived at, this chapter refers especially to the customary process of the Exclusive Economic Zone. Finally, Chapter VII is an inquiry into the nature of the inductive method and its utility as a technique for ascertaining customary law, followed by a proposal for a general method.

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